Alley-Oops: Court Rejects Variance Based on Owner’s Preference

Written by Katelin Carter, Summer Associate

If you’re considering a construction project that doesn’t quite fit your local zoning rules, be prepared to show more than just a preference for a different layout. A variance is a form of zoning relief that allows a property owner to deviate from certain zoning requirements, such as setbacks, lot size, or access rules, but only when strict compliance would cause an unnecessary hardship to the landowners. In a recent case, Sarah Gately-Wilson v. Upper Mount Bethel Twp. Zoning Hearing Bd, the Commonwealth Court reminded applicants that variances require an actual, demonstrable hardship, not simply convenience or speculation of hardship.

The applicants in Gately-Wilson owned 31 acres of preserved farmland with a 2 acre designated building area near a public road. Instead of building within that zone, where they had both legal access and a driveway permit, they proposed placing their home and pole barn near a private alley abutting to their neighbor’s property. The location violated a zoning rule prohibiting sole access via an alley to a primary structure, so they applied for and received a variance to build there.

Although the local Zoning Hearing Board approved the variance, and a trial court affirmed it, the Commonwealth Court reversed. The Court found the applicants hadn’t shown any true “unnecessary hardship,” such as physical or regulatory barriers, that would prevent construction in the compliant area. Their reasons, like concerns about farmland preservation and potential septic issues, were based on personal preference, and they could not prove legal necessity. Even under the more flexible standard for dimensional variances, the Court emphasized that Pennsylvania law still requires substantial proof of hardship tied to the land itself, not just what the owners would rather do.

The bottom line applicants must prove they can’t comply with the zoning requirements not just that they don’t want to.

If your project may require a variance or special exception, we’re here to evaluate your options and guide you through the process.